A man presented to his primary care physician with complaints of abdominal pain and cramping. The primary care physician conducted an evaluation and ordered an abdominal CT scan. The CT scan was performed five days later at a hospital. A radiologist interpreted the scan and prepared a report of his findings. In his report, the radiologist did not mention whether a gastric ulcer was evident on the CT scan.
The man continued to have abdominal symptoms. He presented to the hospital emergency room (ER) the day after the CT scan. The attending physician in the ER evaluated the man. She did not review his CT scan or order any other diagnostic tests. After conferring with his primary care physician, the ER physician discharged him.
The following day, the man saw his primary care physician. She did not order any additional tests and did not diagnose the man’s gastric ulcer during that visit.
After two weeks of continual and intensifying abdominal pain, the man returned to the ER. He was evaluated by another physician who discharged him without conferring with his primary care physician, reviewing the CT scan, or ordering additional diagnostic testing.
The next day, the man presented to the ER at a different hospital with continuing complaints of abdominal pain. A CT scan of his abdomen revealed a large, perforated gastric ulcer. He was admitted immediately and transferred by helicopter to another hospital where he underwent surgery. He remained hospitalized for an extended period of time.
The man sued the first hospital, the doctors, and their practice groups for medical negligence. The complaint alleged that the doctors failed to diagnose and properly treat his gastric ulcer and that the man suffered permanent injuries and damages as a direct and proximate result of the various negligent acts or omissions of the hospital, the doctors, and their practice groups. The man filed his complaint in the Circuit Court of Madison County.
The hospital, doctors, and practice groups moved to transfer the action to the Circuit Court of Montgomery County under the doctrine of intrastate forum non conveniens. The motion argued that Montgomery County was a more convenient form for the litigation because the events giving rise to the action occurred in Montgomery County and because most of the defendants and witnesses resided in or near Montgomery County. They also argued that the man’s choice of forum was entitled to little or no deference because it was neither the man’s home forum nor the forum where the cause of action arose.
In response, the man argued that the hospital, doctors, and their practice groups failed to meet their respective burdens to show that the man’s chosen forum was inconvenient and that another forum would be more convenient for all parties. The man further argued that the defendants failed to show that the relevant public and private interest factors strongly favored transfer of the case from Madison County to Montgomery County. Factors of private interest include: (1) the convenience of the parties, (2) the relative ease of access to sources of testimonial, documentary, and real evidence, and (3) all other practical considerations that make the trial of a case easy, expeditious, and inexpensive. Factors of public interest include: (1) the interest in deciding controversies locally, (2) the unfairness of imposing the expense of a trial and the burden of jury duty on residents of a forum with little connection to the litigation, and (3) the administrative difficulties presented by adding litigation to already congested court dockets.
Following a hearing, the trial court denied the motions to transfer. The trial court found that the man’s choice of forum was entitled to somewhat less deference because the man did not reside in Madison County.
The Appellate Court of Illinois, Fifth District, affirmed. The court held that the trial court correctly determined that the man’s choice of forum was due somewhat less deference, as opposed to no deference; the private interest factor of the convenience of the parties weighed in favor of denying the motion to transfer; the private interest factor of the relative ease of access to sources of testimonial, documentary, and real evidence weighed in favor of denying the motion to transfer; the private interest factor of the possibility of viewing the premises weighed in favor of granting the motion to transfer, but was accorded little weight; the remaining private-interest factors regarding the availability of compulsory service to secure the attendance of unwilling witnesses, the costs to secure the attendance of willing witnesses, and all other practical considerations that make the trial of a case easy, expeditious, and inexpensive did not strongly weigh in favor of denying the motion to transfer; the public interest factor of the interest in deciding localized controversies locally did not strongly weigh in favor of transfer; the public interest factor of whether Madison County had a sufficient connection to this case to warrant imposing the burden of a trial on its citizens and trial court did not strongly weigh in favor of transfer.
The trial court correctly determined that the man’s choice of forum was due somewhat less deference, as opposed to no deference. While plaintiffs have a substantial interest in choosing the forum where their rights will be determined, this interest is accorded less deference where the chosen forum is neither the plaintiffs’ place of residence nor the site of the injury. But less deference does not mean no deference.
The private interest factor of the convenience of the parties weighed in favor of denying the motion to transfer. Defendants may not prevail on a forum non conveniens motion by asserting that a trial in the plaintiff’s chosen forum is inconvenient for the plaintiff. The residences of the individual defendants and defendant entities were spread among several counties. Motions by residents of Madison County suggesting that their home county was inconvenient were not well taken. The court took judicial notice that Madison County and Montgomery County were contiguous and that the distance between the Madison County Courthouse and the Montgomery County Court house was approximately 42 miles. For almost all of the moving defendants, the relatively short distance between the chosen forum and the alternate forum substantially reduced the burden of travel and made it unlikely that a trial in Madison County would be more costly or inconvenient. The court noted that technological advances in the practice of medicine and innovations in the delivery of health care have escalated exponentially, including the mode of ownership, operation, and management of medical practices and services, rendering many of the usual convenience-of-the-party arguments antiquated and implausible. Many of the identified reasons given by the defendants for inconvenience, the court found, would be the case regardless of where the trial took place. The court noted that the affidavits in support of the motion established that it was not the place of the trial, but the fact of a trial that was inconvenient. The fact of trial is not a factor in a forum non conveniens analysis.
The private interest factor of the relative ease of access to sources of testimonial, documentary, and real evidence weighed in favor of denying the motion to transfer. The court found that the medical records and radiological scans could be easily copied and scanned for dissemination among counsel for all parties, and these records could be produced for trial in either forum. The court found no reason to believe that the transportation of any original records or documents to the chosen forum would pose a significant burden on the defendants in this case.
The private interest factor of the possibility of viewing the premises weighed in favor of granting the motion to transfer, but was accorded little weight. The court held that this factor is not concerned with the necessity of viewing the premises, but rather the possibility of viewing the premises, if appropriate. While a jury view of the medical facilities could be more easily accomplished in Montgomery County, there was nothing to suggest that a view of the facilities would be necessary or helpful.
The remaining private-interest factors regarding the availability of compulsory service to secure the attendance of unwilling witnesses; the costs to secure the attendance of willing witnesses; and all other practical considerations that make the trial of a case easy, expeditious, and inexpensive did not strongly weigh in favor of denying the motion to transfer. Compulsory process was available in Madison County and Montgomery County. All in-state witnesses that had been identified by the parties were subject to subpoena in either county. The defendants and their officers, directors and employees may be compelled to appear. The defendants may also be compelled to produce the originals of medical records, and other documents or tangible things. No party identified any out-of-state, nonparty witnesses, and trial experts have not yet been disclosed. The parties’ attorneys had their offices in several counties, including Madison County, but not Montgomery County.
The public interest factor of the interest in deciding localized controversies locally did not strongly weigh in favor of transfer. The negligent acts and omissions occurred in Montgomery County, and most of the subsequent medical care was provided in Sangamon County. The defendants’ residences, medical practices, and service areas, were spread throughout Madison, Montgomery, Sangamon, and other counties in Illinois. In addition, the delivery of services and management of medical practices was interconnected and centralized, rather than localized. The court concluded that this case did not involve a particularly localized controversy, as several counties had some interest in the outcome of the case.
The public interest factor of whether Madison County had a sufficient connection to this case to warrant imposing the burden of a trial on its citizens and trial court did not strongly weigh in favor of transfer. The record supported the trial court’s finding that it would not be unfair to impose jury duty on Madison County residents because the county had several connections to the litigation. The residents of Madison County had a real and genuine interest in considering allegations of medical negligence involving two of its residents, especially where those residents appeared before Madison County juries and rendered expert medical opinions. The residents of Madison County had a genuine interest in considering the quality of care being offered by physicians working for the radiology practice group because it regularly contracted its radiological services to medical facilities in Madison County. The court reviewed the Annual Report of the Illinois Courts and found that in 2013 and 2014, the clearance rates for civil cases in the Third Judicial Circuit, including Madison County, were slightly higher than the clearance rate in the Fourth Judicial Circuit, including Montgomery County, and that from 2010 through 2014, both circuits had clearance rates over 90%. The court reasoned that the trial court was in the best position to consider any administrative problems in relation to its own docket and its ability to try the case in an expeditious manner, and the trial court found that the moving defendants had not demonstrated that there would be greater administrative burdens if the trial occurred in Madison County.
The Appellate Court of Illinois, Fifth District, affirmed the trial court’s denial of the hospital, doctors, and practice groups’ motions to transfer.
See: Foster v. Hillsboro Area Hosp., Inc., 2016 WL 6651495 (Ill.App. 5 Dist., November 10, 2016) (not designated for publication).
See also Medical Law Perspectives December 2016 Report: Gastrointestinal Disorder and Disease Liability Risks (to be published Dec 6, 2016)